State v. Taylor, Ca2006-09-039 (6-11-2007)State v. Taylor, Ca2006-09-039 (6-11-2007)
{¶ 1} Defendant-appellant, Michael Taylor, appeals the decision of the Fayette County Court of Common Pleas sentencing him to consecutive three-year sentences after appellant was convicted of three counts of sexuаl battery.
{¶ 2} As part of a plea agreement, appellant pled guilty to three counts of sexual battery in 2004. The trial court sentenced appellant to three consecutive three-year prison terms for these convictions and classified him аs a sexual predator. Appellant appealed his
{¶ 3} The trial court held a resentencing hearing in August 2006 and again imposed three consecutive three-year prison sentences for appellant‘s sexual battery convictions. Appellant now appeals the trial court‘s resentencing decision and raises the following sole assignment of error for our review
{¶ 4} “THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES ON THE THREE COUTS OF SEXUAL BATTERY AS THE RULING IN STATE V. FOSTER, [CITATION OMITTED] DECLARING 2929.11(E)(4) AND 2929.41(A) UNCONSTITUTIONAL IN EXCISING THEM FROM THE STATUTORY STRUCTURE REMOVES THE COURT‘S AUTHORITY UNDER CIRCUMSTANCES SUCH AS THIS TO IMPOSE CONSECUTIVE SENTENCES. SUCH IMPOSITION THEREFORE DEPRIVES THE DEFENDANT OF EQUAL PROTECTION[,] DUE PROCESS AND OTHER CONSTITUTIONAL RIGHTS PURSUANT TO THE FEDERAL AND STATE CONSTITUTIONS.”
{¶ 5} Appellant‘s аrgument on appeal challenges the authority of a trial court to impose consecutive sentences after the Ohio Supreme Court‘s decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. In Foster, the court found certain provisions of Ohio‘s sentencing statutes were unconstitutional and as a remedy, excised those provisions from the statute. Foster at ¶ 97. Prior to the Foster decision, with certain limited exceptions, prison terms were to run concurrently, unless certain findings were made by the trial court. See Foster at ¶ 66. Two sections of the Revised Code, R.C.
{¶ 6} The authority to impose consecutive sentences has lоng been recognized as an inherent power of trial courts in Ohio and other states. See Henderson v. James (1895), 52 Ohio St. 242, 254-255. In Henderson, the court found that “[a]s we have nо statute authorizing cumulative sentences for crime, it would seem at first blush that such sentences would not be permitted in this state; but this court, with thе courts of most of the other states, as well as England, has sustained cumulative sentences without the aid of a statute. * * * The great weight of authority is in favor of cumulative sentences and they should be upheld on principle.” Id.
{¶ 7} In 1963, the Ohio Supreme Court examined the issue of whether sentences for escape should run concurrently or consecutively when the court‘s judgment entry does not specify how the sentence is to be served. Stewart v. Maxwell, (1963), 174 Ohio St.180. The court found that “[i]n the absence of statute, it is a matter solely within the discretion of thе sentencing court as to whether the sentences shall run consecutively or concurrently.” Id. at 181; see also Stratton v. Maxwell (1963), 175 Ohio St. 65, 67.1 Therefore, as Foster severed the рrovisions of Ohio‘s sentencing statute addressing the imposition of consecutive sentences, we must follow the long-recognized рrinciple that in the absence of a statute, the
{¶ 8} Appellant asserts that “Section
{¶ 9} Moreover, the Ohio Supreme Court specifically stated in Foster that with the severance of R.C.
{¶ 10} A court is bound by and must follow the pertinent decisions of a reviewing court when ruling on issues before it; Battig v. Forshey (1982), 7 Ohio App.3d 72; Thacker v. Bd. of Trustees of Ohio State Univ. (1971), 31 Ohio App.2d 17. Accordingly, this court is bоund by and must follow the decisions of the Ohio Supreme Court. Durbin v. Schoeber (Jan. 27, 1992), Butler CA91-03-048; World Diamond Inc. v. Hyatt Corp. (1997), 121 Ohio App.3d.
{¶ 11} In paragraph seven of the syllabus in Foster, the Ohio Supreme Court held, “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” Foster, 109 Ohio St.3d at paragraph 7 of the syllabus. Therefore, this court and the lower trial courts arе bound to follow this directive. See State v. Pruitt, Franklin App. No. 06AP-1184, 2007-Ohio-2331.
{¶ 12} Accordingly, we find no merit to appellant‘s argument that the trial court did not have the authority tо impose consecutive sentences after the severance of portions of the sentencing statute in Foster. We further note that the Tenth District recently reached the same conclusion when examining this issue. State v. Worrell, Franklin App. No. 06Ap-706, 2007-Ohio-2216. Appellant‘s sole assignment of error is overruled.
{¶ 13} Judgment affirmed.
WALSH and POWELL, JJ., concur.